DAMODAR J MALPANI Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) The appellants before us have impugned the decision of the tribunal by which the tribunal upheld the decision of the excise authorities to classify the product manufactured by the appellant under tariff heading 24. 04 viz. , "manufactured tobacco". According to the appellant the product was properly classifiable under heading 24. 01 i. e. "unmanufactured tobacco".

(2.) It is not in dispute that the appellants' product is chewing tobacco. It is also not in dispute that chewing tobacco is not necessarily manufactured tobacco or classifiable under tariff heading 24. 04. The classification of chewing tobacco as "unmanufactured' or "manufactured' tobacco will ultimately depend on the process adopted for and the composition of the chewing tobacco. The appellants have relied upon the instance of a particular manufacturer of chewing tobacco, namely, m/s. Chandulal K. Patel and company who also manufactures chewing tobacco under the trade name 'karta Chhap Zarda' and whose product has been classified by the excise authority under unmanufactured tobacco under tariff heading 24. 01. According to the appellants, their product was, in substance the same as 'karta Chhap Zarda' and they had followed the same process as M/s. Chandubhai Patel and Co.

(3.) It appears from the records that several letters were written by the appellants to the excise authorities requesting that a sample of the appellants' product may be chemically analysed at the appellants' cost for the purpose of determining whether the appellants' product or process in any way differed from the product and process of M/s. Chandulal K. Patel and Company. However, the excise authorities decided against the appellants without heeding such request. On 4.8.88 a decision was taken by the assistant collector to classify the appellants product under tariff heading, 24. 04. On 11.8.88 a sample of the appellants' product was taken by the respondents but returned within one week without testing on the ground that the issue was being finalised by the assistant collector. In the appeal preferred to the collector, the appellants again raised the issue specifically that the process followed by and the product of the appellants were identical with that of M/s. Chandulal K. Patel and Company and that the appellants product should be similarly classified under heading 24. 01. While upholding the decision of the assistant collector, the collector did not consider this aspect of the matter at all. The point was again taken specifically in the appellants appeal before the customs, excise and gold (control) appellate tribunal. The tribunal however dismissed the appeal and said :